Concurring in part and dissenting in part.
¶ 36 For the reasons explained by my colleagues in the majority decision, I concur in affirming the trial court’s denial of Quon’s motion to set aside the default judgment. But I respectfully dissent from the majority’s refusal to award the prevailing party, Ezell, an amount of reasonable attorneys’ fees on appeal pursuant to A.R.S. § 12-341.01(A). The majority denies Ezell’s request for fees because he failed to cite § 12-341.01 in his answering brief or otherwise on appeal. On this record, I disagree with this conclusion and the mechanical approach it represents, and I would award Ezell an amount of reasonable attorneys’ fees based on § 12-341.01.
¶37 From the time he filed this contract action until now, Ezell has sought attorneys’ fees based solely on § 12-341.01, and the record reveals a persistent and unequivocal focus on § 12-341.01 with respect to attorneys’ fees. Section 12-341.01 is specifically cited by Ezell in his complaint. In his untimely answer, Quon requested an award of fees based on § 12-341.01. Following trial, both parties submitted written closing arguments. Ezell again specifically requested fees under § 12-341.01. Quon argued that Ezell should not be awarded fees under § 12-341.01. The trial court concluded that Ezell was entitled to an award of attorneys’ fees for his unjust enrichment claim. Ezell in his application for fees again cited § 12-341.01. The trial court awarded a portion of Ezell’s requested attorneys’ fees. Later, when the trial court denied Quon’s motion to set aside the default judgment, the court noted that Quon’s counsel appeared at the damages hearing and contested the damages, and the court specifically concluded that attorneys’ fees were therefore available in accordance with § 12-341.01.
¶38 Thus, Ezell has consistently sought attorneys’ fees solely on the basis of § 12-341.01. On appeal, we also focused on § 12-341.01 as we considered and rejected Quon’s request that we set aside the trial court’s award of fees to Ezell based on § 12-341.01. See ¶ 27 supra.
¶39 Ezell timely requested an award of fees on appeal by making the request in his answering brief, and he complied with the pertinent language of Rule 21(c)(1) of the Arizona Rules of Civil Appellate Procedure:
When attorneys’ fees are claimed pursuant to statute, decisional law or contract, a request for allowance of attorneys’ fees in connection with the prosecution or defense of the appeal or the prosecution or defense of the case in the superior court shall be made in the briefs on appeal, or by written motion filed and served prior to oral argument or submission of the appeal.
¶40 The language of the rule does not specifically require that the basis for awarding fees must be stated in the briefs or by motion prior to argument or submission of the appeal. The majority relies on a requirement not stated in the Rule. In contrast, I submit that we should apply the plain meaning of our rules of procedure. See State v. Aguilar, 209 Ariz. 40, 47, ¶ 23, 97 P.3d 865, 872 (2004) (court rules are normally interpreted by their plain meaning); Ariz. Dep’t of Revenue v. Superior Court, 189 Ariz. 49, 52, 938 P.2d 98, 101 (App.1997) (same). We should not interpret Rule 21(e)(1) to create a trap for the unwary. See Nielson v. Patterson, 204 Ariz. 530, 533 ¶ 13, 65 P.3d 911, 914 (2003) (“when a rule of procedure does not speak to a set of facts or speaks ambiguously, courts should give the rule a liberal construction rather than create a pitfall for the *541unwary”).4
¶ 41 Moreover, Rule 21(c)(2) provides that, after a recovery of attorneys’ fees has been allowed by the court, the applicant shall provide a statement of the amount claimed for fees that “shall set forth any relevant statutory or contractual provisions ... relevant to the determination of a reasonable fee.” This requirement is not found in Rule 21(c)(1). Under the interpretive principle of expressio unius est exchtsio alterius, when statutes or rules set forth a requirement in one provision but do not include it in another, “we assume the absence of the requirement was intentional.” See Sharpe v. Ariz. Health Care Cost Containment Sys., 220 Ariz. 488, 496, ¶ 25, 207 P.3d 741, 749 (App.2009). A number of opinions from this court have assumed the existence of such a requirement in Rule 21(c)(1), but it is not to be found there.
¶42 The majority cites only one supreme court opinion — Roubos—in support of denying fees to Ezell. The Roubos court did write, in dicta, that a party requesting fees “must state the statutory or contractual basis for the award.” 214 Ariz. at 420, ¶ 21, 153 P.3d at 1049. But the court denied fees because the request was untimely, not because the applicant failed to reiterate an obvious statutory basis for the award. Id. And the court did not undertake to explain why Rule 21(c)(1) requires an applicant to state the statutory, contractual, or other basis for the award.
¶ 43 Several Arizona Court of Appeals opinions have denied fees because the appellate litigant did not state the statutory or other basis for an award of fees. The majority cites thirteen such cases in footnote 3 su/pra. In none of these opinions, however, does the court explain why the language of Rule 21(c)(1) imposes the requirement of stating, in advance of the procedure established in Rule 21(e)(2), the statutory, contractual, or other basis for the award.
¶ 44 In my view we should pause and determine if the basis for fees is readily ascertainable, as it is here. I agree that it is the duty of the party seeking fees — not the court’s duty — to identify the basis for an award of fees. And I agree that Rule 21(e) provides only the procedure for requesting fees and not the legal basis for such an award. See Malad, Inc. v. Miller, 219 Ariz. 368, 373, ¶ 28, 199 P.3d 623, 628 (App.2008). But when, as here, the legal basis for the request of fees is abundantly clear and readily ascertainable, we should exercise our discretion to consider an award of fees. See A.R.S. § 12-341.01(B) (“The award of reasonable attorney fees pursuant to subsection A should be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense.”).
¶ 45 This is not an appeal in which the basis for awarding fees is in doubt. Nor could there be any surprise to Quon if we awarded fees as we should, because the trial court awarded Ezell an amount of attorneys’ fees based on § 12-341.01, we are affirming that award of fees, and Ezell has timely sought fees on appeal. These are factors we should consider in determining whether to award fees when the successful party has not stated a statutory basis for an award. See Prendergast v. City of Tempe, 143 Ariz. 14, 22, 691 P.2d 726, 734 (App.1984) (affirming trial court’s award of attorneys’ fees when no “surprise” or “prejudice” resulted from failure to identify statutory basis for fees).
¶ 46 On this record and in accordance with the language of Rule 21(c)(1), we should award an amount of reasonable attorneys’ fees in favor of Ezell. I therefore respectfully dissent from the denial of fees by the majority.
. A rule change is respectfully suggested, setting forth clearly any requirement that a party seeking fees on appeal must state, in the party’s brief(s) or by motion, the statutory, contractual, or other basis entitling the party to fees. In the meantime, even though the rule does not specifically require the basis to be set out in a party’s appellate brief or by motion, practitioners should be encouraged to carefully identify on appeal the basis for any fee request.